TALLAHASSEE — More than three years after Gov. Rick Scott issued an executive order seeking across-the-board drug testing for state employees, the U.S. Supreme Court could be poised to decide whether to weigh in on the controversial policy.
The court is expected Friday to discuss privately whether to hear an appeal filed by Scott after a lower court found that the drug-testing plan was too broad, according to an online Supreme Court docket. Behind the scenes, justices sift through thousands of cases a year but decide to hear arguments in only about 100.
The American Federation of State, County and Municipal Employees, with legal representation from the American Civil Liberties Union, challenged Scott’s drug-testing policy, contending that it violates the U.S. Constitution’s Fourth Amendment ban on unreasonable searches and seizures.
The 11th U.S. Circuit Court of Appeals ruled last year that drug tests could not be justified constitutionally for many of the 85,000 workers who would be subject to Scott’s policy and sent the case back to a district court to determine which workers could be tested. That prompted Scott to file a petition in January asking the U.S. Supreme Court to review the appeals-court decision.
In the Supreme Court, Scott’s arguments have received support in a brief filed by the attorneys general of Texas, Alabama, Colorado, Georgia, Kansas, Oklahoma and South Carolina.
Scott’s attorneys argued in the January petition that appeals courts are “deeply divided” about issues involved in the case and that the U.S. Supreme Court has not resolved the questions.
“The constitutionality of Florida?s drug testing policy is not only unsettled — it is an important issue the court should decide now,’’ said the petition, which along with other documents in the case, has been posted online by the website SCOTUSblog. “The Eleventh Circuit has intruded upon Florida?s sovereign right to ensure the general welfare of its citizens and regulate its workforce.”
But the American Federation of State, County and Municipal Employees filed a brief last month arguing that the Supreme Court should not take up the case. Its attorneys wrote that the Scott administration’s contention that appeals courts are divided on the issues is “overblown and misleading.”
Also, attorneys for the state-employees union argued that governments have to show a special need to conduct suspicion-less drug tests, such as a need to test workers whose jobs pose safety risks. The 11th U.S. Circuit Court of Appeals sent the case back to a district court in Miami for that type of analysis of job categories.
"In sum, every (appellate) circuit to address random drug testing of government workers has applied the fact-intensive special-needs analysis, which must be grounded in an evidentiary record made in the district court,’’ the brief said.